TMI Blog2010 (7) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... idates appeared in the test held on 30th October, 2006 the result whereof was announced on 22nd November, 2006. Some of the candidates who failed to qualify made a representation complaining about the manner in which the test was conducted alleging that defective typewriting machines provided to them placed them at a disadvantage vis-a-vis candidates declared successful. The successful candidates also appear to have made a representation impressing upon the authorities to go ahead with the interviews and to complete the selection process expeditiously. Since that did not happen, OA No.748 of 2006 was filed before the CAT by one of the successful candidates for a direction to respondent to proceed with the selection. In the meantime the Divisional Manager of the appellant-Railways issued an order on 14th of December, 2006 cancelling the typewriting test conducted on 30th October, 2006. By another notification of even date a fresh typewriting test was notified to be held on 16th December, 2006 for all the 12 in-service candidates who had appeared in the earlier test. By an interim order passed by the Tribunal the railway authorities were allowed to conduct the proposed second test in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est having been recorded even on the file contemporaneously maintained for that purpose, the same could not be supplied in the affidavit filed in reply to the Writ Petition challenging the said order, especially when the cancellation of the test was not according to the High Court necessitated by any irregularity in the conduct of the test or any mala fides vitiating the same. In the absence of any such infirmity the cancellation of the examination was arbitrary and unsustainable, declared the High Court. 8. There is no quarrel with the well-settled proposition of law that an order passed by a public authority exercising administrative/executive or statutory powers must be judged by the reasons stated in the order or any record or file contemporaneously maintained. It follows that the infirmity arising out of the absence of reasons cannot be cured by the authority passing the order stating such reasons in an affidavit filed before the Court where the validity of any such order is under challenge. The legal position in this regard is settled by the decisions of this Court in Commissioner of Police, Bombay v. Gordhandas Bhanji (AIR 1952 SC 16) wherein this Court observed : Pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court observed: It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha 1974 (3) SCC 220; Neelima Shangla (Miss) v. State of Haryana 1986(4) SCC 268 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion process was not allowed to be scuttled for malafide reasons or in an arbitrary manner. It is trite that Article 14 of the Constitution strikes at arbitrariness which is an anti thesis of the guarantee contained in Articles 14 and 16 of the Constitution. Whether or not the cancellation of the typing test was arbitrary is a question which the Court shall have to examine once a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim an appointment against the advertised posts. 16. What then is meant for arbitrary/arbitrariness and how far can the decision of the competent authority in the present case be described as arbitrary? Black s Law Dictionary describes the term arbitrary in the following words: 1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious. 817. To the same effect is the meaning given to the expression arbitrary by Corpus Juris Secundum which explains the term in the following word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at men in power must remember, always. 19. Dealing with the principle governing exercise of official power Prof. De Smith, Woolf Jowell in their celebrated book on Judicial Review of Administrative Action emphasized how the decision-maker invested with the wide discretion is expected to exercise that discretion in accordance with the general principles governing exercise of power in a constitutional democracy unless of course the statute under which such power is exercisable indicates otherwise. One of the most fundamental principles of rule of law recognized in all democratic systems is that the power vested in any competent authority shall not be exercised arbitrarily and that the power is exercised that it does not lead to any unfair discrimination. The following passage from the above is in this regard apposite: We have seen in a number of situations how the scope of an official power cannot be interpreted in isolation from general principles governing the exercise of power in a constitutional democracy. The courts presume that these principles apply to the exercise of all powers and that even where the decision-maker is invested with wide discretion, that discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frivolous, it may lead to a situation where no selection process can be finalized as those who fail to qualify can always make a grievance against the test or its fairness. What is important is that once a complaint or representation is received the competent authority applies its mind to the same and records reasons why in its opinion it is necessary to cancel the examination in the interest of purity of the selection process or with a view to preventing injustice or prejudice to those who have appeared in the same. That is precisely what had happened in Dilbagh Singh s case (supra). The examination was cancelled upon an inquiry into the allegations of unjust, arbitrary and dubious selection list prepared by the Selection Board in which the allegations were found to be correct. Even in Tarun K. Singh s case (supra) relied upon by Mr. Malhotra an inquiry into the complaints received against the selection process was conducted no matter after the cancellation of the examination. This Court in that view held that since the selection process was vitiated by procedural and other infirmities cancellation thereof was perfectly justified. 23. That is not, however, the position in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an enquiry into or verification of the allegations before passing an order of cancellation is a matter that would depend upon the facts and circumstances of each case. It may often depend upon the nature, source and credibility of the material placed before the authority. It may also depend upon whether any such exercise is feasible having regard to the nature of the controversy, the constraints of time, effort and expense. But what is absolutely essential is that the authority making the order is alive to the material on the basis of which it purports to take a decision. It cannot act mechanically or under an impulse, for a writ court judicially reviewing any such order cannot countenance the exercise of power vested in a public authority except after due and proper application of mind. Any other view would amount to condoning a fraud upon such power which the authority exercising the same holds in trust only to be exercised for a legitimate purpose and along settled principles of administrative law. 25. The next question then is whether the selection should be finalized on the basis of the test held earlier or the matter allowed to be re-examined by the authority in the con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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